Dissenting Opinion, Case No.23968 Board of Education of the County of Wood v. William Johnson

No. 23968
-- The Board of
Education of the County of Wood, a West Virginia Statutory
Corporation v. William Johnson

Workman, Chief Justice, dissenting:

Increasingly,
the trend seems to be for courts to render decisions that reward
wrong-doers. This is wrong and contributes to the falling level
of respect for courts in this country.

This case is
about a school bus driver who had previously been disciplined for
smoking on the school bus, and who was charged once again with
smoking on a school bus. Yet, the majority goes out of its way
not only to reinstate the driver, but to give full back pay,
which means the driver will get approximately two years of back
pay with interest!

While I can
agree that termination from employment was a rather harsh
sanction in light of the Appellant's lengthy employment history
with the Appellee, I cannot condone, as the majority does, the
Appellant's repeated transgressions of smoking on the school bus
in violation of the non-smoking policies governing school
personnel of both the

State of West Virginia and Wood CountySee footnote 1 1by rewarding him.
While I am willing to reinstate the driver to employment, I
cannot in good conscience give him a financial boondoggle,
especially since perhaps in excess of $50,000 will come directly
from funds collected from taxpayers for the education of Wood
County children.

In this case,
the lower court concluded that the decision of the administrative
law judge ("ALJ") was "(1) clearly wrong 'in view
of the reliable, probative and substantial evidence on the whole
record. . . .'" That record consisted of the testimony and
evidence introduced at the level IV hearing, wherein the ALJ
heard the testimony of an eye witness, a motorist, who stated
that she had observed the Appellant smoking a cigarette the
morning of October 11, 1995, while the Appellant was transporting
students to school. Further, the witness telephoned Blaine Auvil,
the Assistant Transportation Director for the Appellee and
relayed to him her observations. Mr. Auvil, in turn, inspected
the Appellant's bus only to discover cigarette ashes on the floor
between the driver's window and the driver's seat. The Appellee
also offered in evidence the former disciplinary action taken
against the Appellant for a previus smoking violation.

The Appellant
stated that the witness mistook a white ball point pen that he
must have had in his mouth for a cigarette. Further, he
acknowledged that the cigarette ashes must have come from when he
was smoking a cigarette while cleaning the bus at his residence
the preceding day, thus acknowledging that he smoked on the bus
only a day before the incident giving rise to the charge. He
stated that possibly he dropped the ashes at that time.See footnote 2 2In
addition, the Appellant offered the testimony of two elementary
school students who were on the bus at the time the Appellant was
alleged to have been smoking, but who testified that they had not
witnessed the Appellant smoke on the bus. Ironically, the
students the driver called to testify had been seated in the rear
of the bus.

Based upon all
this evidence, the ALJ ruled in favor of the Appellant, finding
that the charge against the Appellant had not been proven. As we
stated in syllabus point one of Randolph County Board of
Education v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989),
"[a] final order of the hearing examiner for the West
Virginia Educational Employees Grievance Board, made pursuant to
W. Va. Code, 18-29-1, et seq. (1985), and based upon findings of
fact, should not be reversed unless clearly wrong." We have
previously stated, however, that "[a] finding is clearly
erroneous when, although there is evidence to support the
finding, the reviewing court on the entire evidence is left with
the

definite and firm conviction that a mistake has been
committed." Syl. Pt. 1, in part, In re Tiffany Marie S., 196
W. Va. 223, 470 S.E.2d 177 (1996). Based upon the evidence in the
record, the circuit court was correct in determining that the
hearing examiner was clearly wrong.

Because of the
driver's lengthy employment of approximately twenty years,
however, I would be willing to go so far as to classify the
sanction of dismissal for this violation as arbitrary and
capricious and to support his reinstatement. However, I am
totally unwilling to give the petitioner a financial boondoggle
from the Wood County Board of Education's budget. In Rovello v.
Lewis County Board of Education, 181 W.Va. 122, 381 S.E.2d 237
(1989), we considered the "lack of a clear policy [covering
the incident], the isolated nature of the appellant's offense,
his otherwise [good] record, and the minimal harm to the school
system, [and concluded] that the Board of Education acted
arbitrarily and capriciously in dismissing the appellant."
Id. at 126, 381 S.E.2d at 241. We further recognized in Rovello
that while dismissal was too severe, a lesser sanction was not
inappropriate. Id.; see Board of Education of County of Gilmer v.
Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990) (finding
dismissal too severe and recommending one year suspension without
pay appropriate).

Finally, the
majority fails to address the significant issue of whether the
Appellant was entitled to full back pay. In Mason County Board of
Education v. State Superintendent of Schools, 170 W. Va. 632, 295
S.E.2d 719 ( 1982), we indicated that unless a dismissal is
malicious, a discharged employee is not entitled to full back
pay. Accord Rovello, 181 W. Va. at 126, 381 S.E.2d at 241. There
is absolutely no evidence that the Board acted maliciously and,
therefore, back pay is totally inappropriate.

Here we have a
school bus driver who committed repeated violations of state and
county policies designed to protect the health of the children in
his charge, and he receives what essentially amounts to a
two-year paid vacation.

Based upon the
foregoing, I respectfully dissent to the per curiam decision. I
am authorized to state that Justice Maynard joins in this
dissent.

Footnote: 11 It was
undisputed that smoking on a school bus was in direct violation
of both the State of West Virginia and Wood County's non-smoking
policies applicable to school personnel. See West Virginia State
Board of Education Policy No. 2422.5A and Wood County Board of
Education Policy No. 5114.10.
While some may view this as a frivolous
matter, parents of children with respiratory problems would
heatedly disagree.

Footnote: 22 The majority
makes much of the fact that this violation did not form the basis
for the instant charge. They ignore, however, what powerful
circumstantial evidence this was of the instant violation. See
supra note 1.